Her Majesty the Queen v. Lebar

[Indexed as: R. v. Lebar]

101 O.R. (3d) 263

2010 ONCA 220

Court of Appeal for Ontario,

MacPherson, R.P. Armstrong and Epstein JJ.A.

March 23, 2010

Criminal law -- Sentencing -- Conditional sentence -- "Serious personal injury offence" -- Accused robbing liquor store cashier by producing knife with five-inch blade and holding it close to her throat and saying "this is a robbery" -- Sentencing judge erring in finding that although violence was used during robbery it was not sufficiently serious to meet test of "serious personal injury offence" so as to preclude conditional sentence -- Conditional sentence not available where violence is used, regardless of degree or seriousness of violence -- Criminal Code, R.S.C. 1985, c. C-46, ss. 742.1, 752.

The accused pleaded guilty to robbery. He entered a liquor store, touched the cashier's shoulder, produced a knife with a five-inch blade, held it close to her and told her it was a robbery. She handed over $955. She was not physically injured. The sentencing judge found that a conditional sentence was available as the offence was not a "serious personal injury offence" as defined in s. 752 of the Criminal Code. While she found that the robbery involved the use of violence, she concluded that the violence was not sufficiently serious as to meet the test of serious personal injury offence. She imposed a conditional sentence of two years less a day followed by two years' probation. The Crown appealed.

Held, the appeal should be allowed. [page264]

Parliament's intention in amending s. 742.1 of the Code was to reduce judicial sentencing discretion by eliminating the availability of conditional sentences for crimes of violence if punishable by ten years or more and involving the use or attempted use of violence against a person or endangerment of life or safety. To give effect to that intention, "violence" must be given a broad interpretation. While robbery can be committed in many ways, not all including the use or attempted use of violence, it was reasonable for the sentencing judge to find that the circumstances of the offence involved the use of violence.

Once an accused is found to have committed an act of violence, there is no additional requirement to measure level of violence before finding that a conditional sentence is therefore barred pursuant to s. 742.1 of the Code. Parliament did not intend to allow for a category of less seriously violent crimes for which conditional sentences may be available. The conditional sentence was illegal. The accused had no criminal record and a good employment record until he lost his job of 30 years when his employer closed his business. He co-operated with the police and expressed remorse. He had successfully served 13 months of his conditional sentence before the Crown appeal was heard. The sentence was varied to six months' incarceration, considered to have been fully served.

APPEAL by the Crown from the sentence imposed by Warkentin J., [2009] O.J. No. 895, 2009 9446 for robbery.

Cases referred to R. v. Goforth, [2005] S.J. No. 79, 2005 SKCA 12, [2005] 6 W.W.R. 273, 257 Sask. R. 123, 193 C.C.C. (3d) 354, 27 C.R. (6th) 263, 63 W.C.B. (2d) 544 [Leave to appeal to S.C.C. dismissed [2005] S.C.C.A. No. 456], apld R. v. Neve, 1996 ABCA 242, [1996] A.J. No. 570, [1996] 8 W.W.R. 294, 40 Alta. L.R. (3d) 18, 184 A.R. 359, 108 C.C.C. (3d) 126, 31 W.C.B. (2d) 288 (C.A.), not folld R. v. Ponticorvo, [2009] A.J. No. 326, 2009 ABCA 117, 448 A.R. 275, 246 C.C.C. (3d) 48, consd Other cases referred to R. v. Currie, 1997 347 (SCC), [1997] 2 S.C.R. 260, [1997] S.C.J. No. 10, 146 D.L.R. (4th) 688, J.E. 97-1141, 115 C.C.C. (3d) 205, 7 C.R. (5th) 74, 34 W.C.B. (2d) 264; R. v. D. (C.), [2005] 3 S.C.R. 668, [2005] S.C.J. No. 79, 2005 SCC 78, 261 D.L.R. (4th) 257, 343 N.R. 1, [2006] 5 W.W.R. 195, J.E. 2006-64, 54 Alta. L.R. (4th) 67, 376 A.R. 258, 203 C.C.C. (3d) 449, 34 C.R. (6th) 323, 67 W.C.B. (2d) 867, EYB 2005-98962; R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309, [1987] S.C.J. No. 62, 44 D.L.R. (4th) 193, 80 N.R. 161, J.E. 87-1123, 82 N.S.R. (2d) 271, 37 C.C.C. (3d) 1, 61 C.R. (3d) 1, 32 C.R.R. 41, 3 W.C.B. (2d) 62; R. v. Morgentaler, 1993 74 (SCC), [1993] 3 S.C.R. 463, [1993] S.C.J. No. 95, 107 D.L.R. (4th) 537, 157 N.R. 97, J.E. 93-1654, 125 N.S.R. (2d) 81, 85 C.C.C. (3d) 118, 25 C.R. (4th) 179, 20 W.C.B. (2d) 585; R. v. Naess, [2005] O.J. No. 936, [2005] O.T.C. 176, 64 W.C.B. (2d) 278 (S.C.J.); R. v. Reed, [2009] B.C.J. No. 1333, 2009 BCPC 201; Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 154 D.L.R. (4th) 193, 221 N.R. 241, J.E. 98-201, 106 O.A.C. 1, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 CLLC Â210-006 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 109 [as am.], 343(a), (d), 344 [as am.], (1), (b), 487.051 [as am.], 718 [as am.], 742.1 [as am.], 752 [as am.], (a)(i), (ii), 753(1)(a) [as am.], 759(2) [as am.], (4) [as am.] Youth Criminal Justice Act, S.C. 2002, c. 1 [as am.] Authorities referred to Driedger, Elmer, A., The Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) [page265]

Ian Bulmer, for appellant. Neil J. McCartney, for respondent.

The judgment of the court was delivered by

EPSTEIN J.A.: --

Overview

[1] The issue in this appeal is whether a conditional sentence is an available sentence for a robbery conviction in which it is found that the underlying conduct involved the use or attempted use of violence.

[2] The respondent pleaded guilty to the charge of robbery. The underlying facts involved his walking into an LCBO store, armed with a five-inch knife that he used to persuade the cashier to hand over $955.

[3] The Crown sought a penitentiary sentence of three to five years. The sentencing judge acceded to the respondent's submission that a conditional sentence was available and appropriate and imposed a sentence to be served in the community of two years less one day, followed by two years of probation. The trial judge also imposed orders under s. 109 and s. 487.051 of the Criminal Code, R.S.C. 1985, c. C-46.

[4] The Crown appeals the sentence on a question of law alone, pursuant to s. 759(2) of the Code. The Crown submits that the sentence was illegal. Section 742.1 states that a conditional sentence is not available to a person convicted of a "serious personal injury offence" as defined in s. 752. Section 752 of the Code defines the first branch of "serious personal injury offence" as "an indictable offence . . . involving the use or attempted use of violence against another person, or conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person". The second branch of the definition covers sexual offences. The trial judge found that the robbery in this case involved the use of violence.

[5] However, the trial judge, upon considering the relevant provisions of the Code, held that although the respondent committed an offence involving violence, the violence was not sufficiently serious so as to "meet the test of a serious personal injury offence". She reasoned that, properly interpreted and read together, the Code provisions allow a trial judge discretion to [page266] assess whether the circumstances surrounding the commission of the offence support a finding that an objective threshold of severity in the violence has been met, in order to elevate the offence to the serious personal injury offence realm.

[6] I would allow the appeal. In my view, the key to fulfilling the relevant criterion of a "serious personal injury offence" is a sustainable finding of violence. Once the accused is found to have committed an act of violence, a conditional sentence is not available, per s. 742.1.

[7] I would therefore set aside the conditional sentence on the basis that it is an illegal sentence and replace it with a custodial sentence of six months, followed by two years of probation. However, in the light of the fact that the respondent has served his conditional sentence apparently without incident, in my view justice would not be served by incarcerating him at this stage.

Background

1. The offence

[8] The facts agreed upon in the course of the guilty plea disclose the following.

[9] Just after noon on December 6, 2007, the respondent entered an LCBO store in Thunder Bay, Ontario and approached the cashier from behind. He touched her shoulder, produced a knife with a five-inch blade and, holding it close to her, said "this is a robbery". The cashier put an amount of cash into an LCBO bag and gave it to the respondent. The cashier was not physically injured.

[10] About 20 minutes later, the police apprehended the respondent. Upon his arrest, an LCBO bag fell from his jacket. The bag contained $955, including a $10 bill the LCBO used as "bait money".

[11] The respondent co-operated fully with the police and, after being provided with his rights, said, "I would like to say something. I want to apologize to the girl I put the knife to."

2. The offender

[12] While not necessarily germane to the issue raised in this appeal, I will set out the respondent's circumstances in order to put the sentencing judge's decision in context.

[13] At the time of the offence, the respondent was 50. He had lived in Red Rock, Ontario all of his life. He has a grade 10 education, is divorced and has two adult sons. He assists his brother who is disabled as a result of a work-related injury. [page267]

[14] For 30 years, the respondent was employed by a local paper mill until 2005, when the mill was closed. The respondent actively sought replacement employment but was unsuccessful. His social assistance was terminated shortly before the robbery.

[15] He had been drinking at the time of the incident. While in the cruiser, he asked police "Don't you want to know why I did it? Well I lost my job at the mill, I then got cut off pogie, and I didn't know what else to do." The respondent authored a note of apology to the victim in which he said "All I think about is how scared you must have been that day. And for that I am truly sorry. Please accept my apology."

[16] The respondent filed several letters attesting to his good character. He had only one previous criminal conviction -- in March 2000, he was convicted of impaired driving.

3. The legislation

[17] The interpretation of the interrelationship between various sections of the Code relating to the concept of violence, the offence of robbery and the circumstances under which a conditional sentence may be available are at the heart of the issue raised in this appeal.

[18] The following are the sections of the Code relevant to these issues. I start with the underlying offence of robbery.

[19] The respondent was charged and convicted of the offence of robbery under s. 343(d):

343. Every one commits robbery, who (a) Steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property . . . . . (d) Steals from any person while armed with an offensive weapon or imitation thereof.

[20] Section 344 is the specific sentencing provision:

344(1) Every person who commits robbery is guilty of an indictable offence and liable . . . . . (b) in any other case [i.e. where a firearm is not used], to imprisonment for life.

[21] The following provisions of the Code are relevant to whether a conditional sentence for the crime of robbery is available.

[22] Section 742.1 provides as follows: [page268]

742.1 If a person is convicted of an offence, other than a serious personal injury offence as defined in section 752, . . . the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's compliance with the conditions imposed under section 742.3.

[23] Section 752 defines a "serious personal injury offence", in part, as follows:

(a) An indictable offence, other than high treason, treason, first degree murder or second degree murder involving (i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,

and for which the offender may be sentenced to imprisonment for ten years or more, . . .

[24] Reading these provisions together, a conditional sentence is not available if a person is convicted of a serious personal injury offence. A serious personal injury offence is defined to include the use or attempted use of violence against another person.

4. The reasons for sentence

[25] The sentencing judge, after setting out the relevant Code provisions, identified the issue as follows [at para. 25]:

Therefore, by virtue of the definition of serious personal injury offence in s. 752 with the amendment to s. 742.1, I must determine if the robbery committed by [the respondent] involved "the use or attempted use of violence against another person, or conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".

[26] Then, in considerable detail, the trial judge set out the competing views expressed by appellate and lower courts on what she considered to be the central issue: whether a finding that a serious personal injury offence had been committed was dependent on a finding of not just violence, but violence accompanied by a sufficient degree of objective severity.

[27] The trial judge expressed concern about the impact on judicial discretion of accepting the Crown's position, supported by R. v. Goforth, 2005 SKCA 12, [2005] S.J. No. 79, 257 Sask. R. 123 (C.A.), leave to appeal to S.C.C. dismissed [2005] S.C.C.A. No. 456, that any offence involving violence was automatically a serious personal injury offence and therefore precluded from attracting a conditional sentence. At para. 52, she said:

To apply the analysis in the Goforth decision to cases that result in the application of s. 752 by virtue of the amendment to s. 742.1, would have the [page269] undesired result that the offender would not be entitled to a conditional sentence regardless of the circumstances of the particular case. This would remove much of the discretion from the trial judge in determining when the principles of a conditional sentence are met and when an offence is a serious personal injury offence.

[28] Against this background, the trial judge proceeded to make a specific finding that the offence committed by the respondent involved violence. "The very nature of using a knife as a threat to induce a desired result, whether implied or real is an act of violence": para. 54. However, she went on to hold that the violence was not sufficiently egregious to amount to a serious personal injury offence under the first branch of the definition in s. 752 of the Code. Accordingly, she reasoned that it was open to her to consider whether a conditional sentence was appropriate.

[29] After reviewing the aggravating and mitigating circumstances, the principles of sentencing articulated in s. 718 of the Code, and the jurisprudence relating to the circumstances where conditional sentences were considered, the sentencing judge concluded that a sentence of two years less a day to be served in the community, followed by two years probation, was fit. She also imposed orders under ss. 109 and 487.051 of the Code.

Issues

[30] Two issues are raised in this appeal: (a) whether the respondent's conduct involved the use or attempted use of violence; and (b) whether the sections of the Code contemplate that once violence is recognized as being part of the conduct underlying the offence, the court retains discretion in terms of whether or not a conditional sentence is available.

Analysis

a. Whether the respondent's conduct involved the use of violence

[31] I start with the respondent's challenge to the trial judge's finding that his conduct involved the use of violence.

[32] The trial judge was clear. As mentioned above, at para. 54, she said, "I find it difficult to accept that the offence committed by [the respondent] did not involve violence as submitted by the Defence. The very nature of using a knife as a threat to induce a desired result, whether implied or real is an act of violence." Later, at para. 66, she reiterated: "I am mindful that this [page270] is a case where the offence was serious and involved some degree of violence."

[33] I agree with the respondent that robbery can be committed in many ways, not all including the use or attempted use of violence. Section 343(a) applies to a robbery committed with violence. It is categorically a crime of violence -- violence is an essential element of an offence under that section. The same cannot be said about s. 343(d). From the wording of that section, it is clear that the use or attempted use of violence is not an essential element. For a finding of guilt, the section merely requires that the Crown prove that the accused stole something while armed with an offensive weapon. If violence is found to have been involved, it is merely one of the circumstances under which the robbery was committed. Such is the nature of the trial judge's finding here, that the robbery was accompanied by violence.

[34] But the respondent says that this finding was in error. The respondent submits that he did not commit an offence that used or attempted the use of violence. What the trial judge found amounted to conditional violence -- the use of the knife in these circumstances was a threat that violence would be used if the victim did not hand over the money. In support of this proposition, the respondent relies on the trial judge's words found in the next paragraph that [at para. 55] "[he] did not utter verbal threats of violence. He simply displayed the knife when he conducted the robbery." The respondent argues that the trial judge identified a threat of violence and erroneously called it violence.

[35] This takes me to a consideration of what is meant by the term "violence". Violence is not defined in the Criminal Code. In order to determine the meaning of an undefined term in a statute, the word must be read in its entire context and in its grammatical and ordinary sense harmoniously with the scheme of the Code, its object and the intention of Parliament: Elmer A. Driedger, The Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at p. 87; adopted by the Supreme Court in Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, at p. 41.

[36] In R. v. D. (C.), 2005 SCC 78, [2005] 3 S.C.R. 668, [2005] S.C.J. No. 79, the Supreme Court considered the term "serious violent offences" under the Youth Criminal Justice Act, S.C. 2002, c. 1. There, the court in its lengthy analysis of the issue, observed that violence is typically associated with either the application of force or the causation of harm or injury or both. In the end, the court concluded that the focus of the determination of whether the conduct in issue amounted to a "violent offence" should be on the [page271] bodily harm caused or attempted by an offender, rather than the force applied.

[37] In my view, this conclusion was driven by the context of the case. There were good reasons to define "violent offences" in terms of the harm caused or attempted rather than the force applied. First, the term "violent offence" would not capture attempts if it were force-based. Second, the term "serious violent offences" was the defined term in play in that case and certain "serious violent offences" did not require the use of force (such as murder through an omission).

[38] The decision in D. (C.) provides assistance in that it makes it clear that concepts in the Code, such as violence, should be determined contextually. For the purposes of this appeal, the meaning to be ascribed to the "use or attempted use of violence" must be in the context of the provisions of the Code dealing with the availability of conditional sentences.

[39] As I will discuss, a contextual analysis leads to the conclusion that the legislators intended a broad definition of the term violence.

[40] I start with the legislative history, as it can play a role, albeit limited, in the task of interpreting the meaning of a word used in a statute: see R. v. Morgentaler, 1993 74 (SCC), [1993] 3 S.C.R. 463, [1993] S.C.J. No. 95.

[41] Section 752 of the Code, defining "serious personal injury offence", was first introduced in 1977, as part of an omnibus bill, which included strict firearm control and the new dangerous offender provision. Until 2007, "serious personal injury offences" were exclusively of interest to the dangerous and long-term offender regimes.

[42] The defined term received more attention in 2007 when s. 742.1 was revised to exclude "serious personal injury offences" from the conditional sentencing regime.

[43] The amendments to s. 742.1 were brought forward in 2006 as Bill C-9. Initially, the bill did not contain any reference to a serious personal injury offence. The proposed amendment qualified the circumstances under which a conditional sentence was available by adding the following words to the section, [emphasized] here for ease of identification:

742.1 If a person is convicted of an offence, other than an offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the [page272] offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's compliance with the conditions imposed under section 742.3. (Emphasis added)

[44] As the Crown states in its factum, this language was deemed to be too broad, as it would have caught non-violent offences: an unintended consequence. After the second reading, it was sent to the Standing Committee on Justice and Human Rights. A first attempt to amend the bill granted discretion to judges in a new subsection (2) and tried to give some specificity to the crimes caught:

(2) Despite subsection (1), the court shall not order that an offender serve his or her sentence in the community if the offender has been convicted of any of the following offences, unless the court is satisfied that it is in the interests of justice to do so because of exceptional circumstances: (a) a serious personal injury offence as defined in section 752; (b) a terrorism offence; (c) a criminal organization offence; and (d) an offence in respect of which, on the basis of the nature and circumstances of the offence, the expression of society's denunciation should take precedence over any other sentencing objectives.

[45] This amendment was rejected by the chair as procedurally inadmissible because it went beyond the substance of the bill by inserting judicial discretion where it had not existed before. A new amendment was brought forward that resulted in the current language that renders a conditional sentence unavailable for any serious personal injury offence as defined in s. 752.

[46] Before the Committee, the Aboriginal Legal Services argued, as it did before this court, that reducing the discretion of sentencing judges to impose conditional sentences would disproportionately affect aboriginal people. Despite this input, the bill passed.

[47] Based on this history, I conclude that the object and scheme of the relevant provisions of the Code, as well as Parliament's intention in enacting them, was to reduce judicial sentencing discretion by eliminating the availability of conditional sentences for crimes of violence within a certain set of criteria. This is significant in the light of the trial judge's conclusion that the reduction of judicial discretion was an "undesired result".

[48] To be true to Parliament's intention, the concept of violence must be given a broad interpretation.

[49] In my view, the meaning of "violence" in this definition must be informed by the entirety of the definition of a serious personal injury offence. A serious personal injury offence is [page273] defined, in part, either as an offence involving the use or attempted use of violence against another person, or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person". Taken together, and especially taking into account the far-reaching meaning of the word "safety", these two clauses point to the legislature's intention to cover a very expansive range of dangerous behaviour with the term "serious personal injury offence".

[50] A finding that violence was used remains a matter of factual determination for the trial judge. Whether the criminal conduct amounted to the use or attempted use of violence is a matter relating to the circumstances under which the crime was committed. This is not tantamount to an objective assessment of the seriousness of the violence; rather, it is a question of determining whether the evidence proves that violence was actually used.

[51] This is precisely what the trial judge found. Her finding in this respect is unassailable. It was reasonable for the trial judge to find that holding a knife with a five-inch blade to a person's neck, for the purpose of requiring her to yield to a demand for money, is a use of violence. As it turned out, it was a highly effective use of violence.

[52] For these reasons, I reject the respondent's argument that the trial judge erred in finding that the respondent's conduct in committing the robbery included the use of violence.

b. Judicial discretion under s. 742.1

[53] This takes me to the other major issue raised in this appeal, namely, whether the determination of an offence as a serious personal injury offence involves a two-fold analysis -- first, whether the offence involves the use or attempted use of violence, and second, whether the violence of the offence was committed with an objective degree of severity such that it comes within the meaning of a "serious personal injury offence".

[54] This issue forms the appellant's main argument. The appellant submits that Parliament intended that conditional sentences be prohibited for all indictable offences that carry sentences of ten years or more if the commission of the offence involved the use of any degree of violence no matter how significant.

[55] The respondent argues that even if the trial judge's determination that this was an offence where violence or the use of violence was involved is sustainable, she correctly proceeded to the next step of examining whether the violence was [page274] sufficiently serious so as to preclude a conditional sentence and then correctly determined that it was not.

[56] In my view, the respondent's position is not supported by the statutory history or context, or by the jurisprudence.

[57] First, there is nothing in the statutory history to suggest that Parliament intended to allow for a category of less seriously violent crimes for which conditional sentences may be available.

[58] In terms of the case law, as the trial judge noted, two lines of authority have developed around the issue of whether an objective degree of severity must be found to exist before an offence involving violence can be said to be a serious personal injury offence.

[59] By way of preliminary remark, I caution that in turning to the jurisprudence for guidance in the resolution of this issue, it is important to bear in mind that the consideration of whether an offence is a serious personal injury offence initially arose in the realm of dangerous offender proceedings and many, if not most, of the cases consider the concept of violence and the definition of a serious personal injury offence in that context.

[60] Such is the case in R. v. Neve, 1996 ABCA 242, [1996] A.J. No. 570, 40 Alta. L.R. (3d) 18 (C.A.), where an 18-year-old accused was convicted of robbery. She had taken a fellow prostitute to a desolate area, cut her clothes off with a knife and left her naked in five degree weather. She was charged with assault with a weapon and robbery (of the clothes). The Alberta Court of Appeal, after canvassing several definitions of "violence" and finding that "violence in its everyday usage contemplates an element of severity to the physical force that constitutes the violent act", interpreted s. 752(a)(i) to require that the violence be objectively serious.

[61] It is clear that the meaning given to violence in Neve was coloured by the context of its being considered a gateway to the dangerous/long-term offender provisions. The Alberta court concluded that Parliament intended that only objectively serious violence and endangerment that involved a likelihood of material harm (physical or psychological) could constitute the predicate offence for a dangerous offender designation. The court considered the serious consequences of the designation, and the requirement in s. 753(1)(a) that the predicate offence form part of a repetitive pattern of behaviour that established that the offender constituted a danger to the public. Further, the court had regard to the reasons of La Forest J. in R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309, [1987] S.C.J. No. 62, who concluded, at para. 43, that the dangerous offender provisions did not constitute cruel and unusual punishment in part because the provisions referred to conduct that satisfied a high standard of seriousness. [page275]

[62] In the opposing line of cases represented by Goforth, the Saskatchewan Court of Appeal rejected the so-called "objective seriousness test" endorsed in Neve. In Goforth, the accused, without provocation, attacked a woman with a wine bottle. She went to hospital. She had no broken bones, and the hospital staff put her arm in a sling, gave her Tylenol and discharged her. The trial judge ruled that this "violence" did not meet the objective level of seriousness necessary for the long-term offender provisions.

[63] The Saskatchewan Court of Appeal rejected the argument that "violence" in the s. 752 definition meant "[serious] violence". The court found that the words of the section do not invite a qualitative assessment of the degree of violence or endangerment in the predicate offence. It also found that requiring a threshold of "seriousness" or "very serious" was not consistent with the interpretation of the section made by the Supreme Court of Canada in R. v. Currie, 1997 347 (SCC), [1997] 2 S.C.R. 260, [1997] S.C.J. No. 10, a case where the Supreme Court considered the sexual offences caught by the definition of "serious personal injury offence", in the context of the dangerous offender designation: see Currie, para. 22. Other courts have agreed with the Goforth analysis: see R. v. Naess, [2005] O.J. No. 936, 64 W.C.B. (2d) 278 (S.C.J.) and R. v. Reed, [2009] B.C.J. No. 1333, 2009 BCPC 201.

[64] The respondent argues that the trial judge was correct in following the reasoning in Neve. He points out that Parliament chose not to specifically exclude robbery from the conditional sentence provisions. Yet, absent a qualitative analysis of the severity of the violence, virtually all robberies may be caught by the wording of the sections, given the requirement for violence or a threat of violence in the definition of robbery under s. 343(a).

[65] I agree with the appellant that the preferable line of reasoning is that represented by Goforth. The plain wording of the section is that an offence meets the definition if it is a serious offence, described as one that proceeds by indictment and carries a maximum sentence of ten years or more, and involves the use or attempted use of violence against a person, or endangerment of life or safety. There are clearly ways in which robbery may be committed without the use or attempted use of violence against a person, such as the use of violence or a threat of violence to property under s. 343(a).

[66] Furthermore, the Alberta Court of Appeal has explicitly recognized Neve's limited application. I refer to the decision in R. v. Ponticorvo, 2009 ABCA 117, [2009] A.J. No. 326, 246 C.C.C. (3d) 48 (C.A.). There, the Court of Appeal rejected the argument of the respondent (accused) relying on Neve, that the violence or endangerment [page276] on which the Crown relied to constitute a serious personal injury offence must be objectively serious. The court specifically held, at para. 15, that the approach set out in Neve does not apply when considering the availability of a conditional sentence:

In our view, the restrictive definition adopted by the Court in Neve does not apply in the context of s. 742.1 which authorizes the imposition of a conditional sentence. The considerations that led the Court in Neve to adopt the restricted definition of serious personal injury offence are not present here. In the context of s. 742.1, the use or attempted use of violence suffices and does not require any overlay of objective seriousness.

[67] Faced with the legislative history of the sections in question, the persuasive authority of other jurisdictions and the plain meaning of the words in s. 752, I disagree with the trial judge's reasoning that the conduct underlying the offence, once identified as including violence or the use of violence, must rise to a level of serious violence so as to be identified as a serious personal injury offence. In my view, a court is obliged by the s. 752 definition of "serious personal injury offence" to determine whether the circumstances of the case demonstrate violence or attempted violence. Once demonstrated, there is no obligation to go further and measure the degree of violence.

[68] My response to the concern about the loss of discretion is two-fold. First, it is clear from the legislative and committee debates that Bill C-9 was intended to remove a degree of judicial discretion in the use of conditional sentences. Second, the factual determination as to whether a particular set of actions constituted the use or attempted use of violence will always be within the interpretive discretion of the court.

[69] In short, I conclude that for the purposes of the availability of a conditional sentence, Parliament created a divide between crimes where violence is or is not used, not between crimes of serious violence and less serious violence.

[70] For these reasons, I am of the view that the trial judge erred in examining the seriousness of the violence used in the context of the robbery. The premise that if the violence in question did not rise to a sufficient level, then a conditional sentence remained available was an error in law, rendering the sentence she imposed illegal.

Disposition

[71] The Crown has established an error in law. Section 759(4) allows this court to make a decision as if it were a decision of the trial court. [page277]

[72] I would allow the appeal and set aside the sentence. I would replace it with a custodial sentence of six months. Having regard to the fact that the respondent has served approximately 13 months of his conditional sentence without incident, I am of the view that justice would not be served by his being incarcerated at this stage. The time the respondent has served under the conditional sentence should be applied against the six-month sentence I would impose such that the six-month sentence is considered to have been fully served.

Appeal allowed.